Higgins et al v. Ethicon, Inc.

Filing 103

MEMORANDUM OPINION AND ORDER (Defendants' Motion for Summary Judgment) The 62 MOTION by Ethicon, Inc., Johnson & Johnson for Summary Judgment is GRANTED in part and DENIED in part. Ethicon's Motion is GRANTED with regard to the following claims: (II) strict liability - manufacturing defect, (III) strict liability - failure to warn, (VI) common law fraud, (VII) fraudulent concealment, (VIII) constructive fraud, (X) negligent infliction of emotional distress, (XI) breach of express warranty, (XII) breach of implied warranty, (XIII) violation of consumer protection laws, and (XV) unjust enrichment. Signed by Judge Joseph R. Goodwin on 3/30/2017. (cc: counsel of record; any unrepresented party) (kp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
SUSAN HIGGINS, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:12-cv-01365

ETHICON, INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
(Defendants’ Motion for Summary Judgment)
Pending before the court is the Motion for Summary Judgment [ECF No. 62]
filed by defendants Ethicon, Inc. and Johnson & Johnson (collectively, “Ethicon”). As
set forth below, Ethicon’s Motion is GRANTED in part and DENIED in part.
I.

Background
This action involves Texas co-plaintiffs, one of whom was implanted with a

mesh product manufactured by Ethicon, the Gynecare Tension-free Vaginal TapeSECUR (“TVT-S”) on August 25, 2006. Am. Short Form Compl. [ECF No. 13] ¶¶ 1–
12. The case resides in one of seven MDLs assigned to me by the Judicial Panel on
Multidistrict Litigation concerning the use of transvaginal surgical mesh to treat
pelvic organ prolapse (“POP”) and stress urinary incontinence (“SUI”). In the seven
MDLs, there are more than 60,000 cases currently pending, nearly 28,000 of which
are in the Ethicon MDL, MDL 2327.

In an effort to efficiently and effectively manage this massive MDL, the court
decided to conduct pretrial discovery and motions practice on an individualized basis
so that once a case is trial-ready (that is, after the court has ruled on all summary
judgment motions, among other things), it can then be promptly transferred or
remanded to the appropriate district for trial. To this end, the court ordered the
plaintiffs and defendants to submit a joint list of 200 of the oldest cases in the Ethicon
MDL that name only Ethicon, Inc., Ethicon, LLC, and/or Johnson & Johnson. These
cases became part of a “wave” of cases to be prepared for trial and, if necessary,
remanded. See Pretrial Order No. 206, In re Ethicon, Inc. Pelvic Repair Sys. Prods.

Liab.

Litig.,

No.

2:12-md-002327,

Nov.

20,

2015,

available

at

http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html. The plaintiffs’ case was
selected as an “Ethicon Wave 2 case.”
II.

Legal Standards
A. Summary Judgment
To obtain summary judgment, the moving party must show that there is no

genuine dispute as to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). In considering a motion for
summary judgment, the court will not “weigh the evidence and determine the truth
of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the
court will draw any permissible inference from the underlying facts in the light most
favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587–88 (1986).
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Although the court will view all underlying facts and inferences in the light
most favorable to the nonmoving party, the nonmoving party nonetheless must offer
some “concrete evidence from which a reasonable juror could return a verdict” in his
or her favor. Anderson, 477 U.S. at 256. Summary judgment is appropriate when the
nonmoving party has the burden of proof on an essential element of his or her case
and does not make, after adequate time for discovery, a showing sufficient to establish
that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The nonmoving
party must satisfy this burden of proof by offering more than a mere “scintilla of
evidence” in support of his or her position. Anderson, 477 U.S. at 252. Likewise,
conclusory allegations or unsupported speculation, without more, are insufficient to
preclude the granting of a summary judgment motion. See Dash v. Mayweather, 731
F.3d 303, 311 (4th Cir. 2013); Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th
Cir. 1997).
B. Choice of Law
The plaintiffs originally filed their claim the Southern District of Texas. See
Compl. [ECF No. 1]. Thus, the choice-of-law principles of Texas guide the court’s
choice-of-law analysis. See Klaxon Co. v. Stentor Elect. Mfg. Co., 313 U.S. 487, 496
(1941).
The parties agree, as does the court, that these principles compel application
of Texas substantive law to the plaintiffs’ claims. In tort actions, Texas adheres to the
Restatement (Second) of Conflict of Laws (Am. Law Inst. 1971). Gutierrez v. Collins,
3

583 S.W.2d 312, 318 (Tex. 1979). Under section 145 of the Restatement, the court
must apply the law of the state with the most “significant relationship to the
occurrence and the parties.” Here, the plaintiffs reside in Texas, and Ms. Higgins’
implantation surgery occurred in Texas. Am. Short Form Compl. ¶ 11. Texas has a
strong interest in resolving tort actions brought by its citizens for injuries arising
from conduct alleged to have occurred within its territorial jurisdiction. Thus, I will
apply Texas substantive law to this case.
III.

Analysis
Ethicon argues it is entitled to summary judgment because the relevant

statute of limitations bars certain claims. Ethicon also argues it is entitled to
summary judgment because the plaintiffs’ claims are without evidentiary or legal
support.
A. Conceded Claims
The plaintiffs concede the following claims: (II) strict liability – manufacturing
defect, (VI) common law fraud, (VII) fraudulent concealment, (VIII) constructive
fraud, (X) negligent infliction of emotional distress, (XI) breach of express warranty,
(XII) breach of implied warranty, (XIII) violation of consumer protection laws, and
(XV) unjust enrichment.
Accordingly, Ethicon’s Motion regarding those claims is GRANTED.
A. Failure to Warn Claim
Texas follows the learned intermediary doctrine. Centocor, Inc. v. Hamilton,
4

372 S.W.3d 140, 158–9 (Tex. 2012) (holding “the doctrine generally applies within the
context of a physician-patient relationship”); see also Bean v. Baxter Healthcare

Corp., 965 S.W.2d 656, 663 (Tex. Ct. App. 1998) (applying the learned intermediary
doctrine to an implantable medical device case). Under this doctrine, “a manufacturer
is required to provide adequate warning to the end users of its product if it knows or
should know of any potential harm that may result from the use of its product.” Id.
at 153–154. “In order to recover for a failure to warn under the learned intermediary
doctrine, a plaintiff must show: (1) the warning was defective; and (2) the failure to
warn was a producing cause of the plaintiff ’s condition or injury.” Porterfield v.

Ethicon, Inc., 183 F.3d 464, 468 (5th Cir. 1999) (applying Texas law). However, if “the
physician was aware of the possible risks involved in the use of the product but
decided to use it anyway, the adequacy of the warning is not a producing cause of the
injury and the plaintiff ’s recovery must be denied.” Centocor, 372 S.W.3d at 173
(quoting Porterfield, 183 F.3d at 468) (internal quotations omitted)).
Even assuming that the plaintiffs presented sufficient evidence to show that
Ethicon’s warning to Dr. Anhalt was inadequate, they were still required to prove the
inadequate warning was the producing cause of her injuries. See Centocor, 372
S.W.3d at 170. To prove causation, “the plaintiff must show that a proper warning
would have changed the decision of the treating physician, i.e., that but for the
inadequate warning, the treating physician would have not used or prescribed the
product.” Ackermann v. Wyeth Pharm., 526 F.3d 203, 208 (5th Cir. 2008) (quoting
5

Dyer v. Danek Med., Inc., 115 F. Supp. 2d 732, 741 (N.D. Tex. 2000)).
The plaintiffs have failed to present any testimonial or other evidence that
Dr. Anhalt would not have used or prescribed the TVT-S to treat Ms. Higgins had he
received a different warning.
Thus, Ethicon’s Motion regarding the failure to warn claim (count III) is
GRANTED.
B. All Remaining Claims
The court FINDS that genuine disputes of material fact exist regarding the
plaintiffs’ remaining claims challenged by Ethicon, including under the statute of
limitations. Accordingly, Ethicon’s Motion as to all remaining claims is DENIED.
IV.

Conclusion
For the reasons discussed above, it is ORDERED that Ethicon’s Motion for

Summary Judgment [ECF No. 62] is GRANTED in part and DENIED in part.
Ethicon’s Motion is GRANTED with regard to the following claims: (II) strict liability
– manufacturing defect, (III) strict liability – failure to warn, (VI) common law fraud,
(VII) fraudulent concealment, (VIII) constructive fraud, (X) negligent infliction of
emotional distress, (XI) breach of express warranty, (XII) breach of implied warranty,
(XIII) violation of consumer protection laws, and (XV) unjust enrichment.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:
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March 30, 2017